Sorce v. Parawest Management Real Estate et al

Filing 4

ORDER granting Plaintiff's 2 Motion for Leave to Proceed in forma pauperis. Court dismisses without prejudice the complaint pursuant to 28 USC 1915(e)(2)(B)(ii), and terminates as moot Plaintiff's 3 Motion to Appoint Counsel. Signed by Judge Cynthia Bashant on 9/30/2016. (All non-registered users served via U.S. Mail Service) (jah)

Download PDF
1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 JOSEPH SORCE, JR., Plaintiff, 14 15 16 17 18 Case No. 16-cv-2379-BAS(RBB) ORDER: (1) GRANTING PLAINTIFF’S MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS; v. PARAWEST MANAGEMENT REAL ESTATE, et al., Defendants. 19 (2) DISMISSING COMPLAINT WITHOUT PREJUDICE PURSUANT TO 28 U.S.C. § 1915(e)(2)(B)(ii); AND 21 (3) TERMINATING PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL AS MOOT 22 [ECF Nos. 2, 3] 20 23 24 On September 22, 2016, Plaintiff Joseph Sorce, Jr., proceeding pro se, 25 commenced this action against Defendants Parawest Management Real Estate, 26 Crystle Springs Real Estate, and College Grove Apartments. On the same day, 27 Plaintiff also filed a motion for leave to proceed in forma pauperis (“IFP”) and a 28 motion for appointment of counsel. (ECF Nos. 2-3.) –1– 16cv2379 1 For the reasons discussed below, the Court GRANTS Plaintiff’s motion to 2 proceed IFP, DISMISSES WITHOUT PREJUDICE the complaint pursuant to 28 3 U.S.C. § 1915(e)(2)(B)(ii), and TERMINATES AS MOOT Plaintiff’s motion for 4 appointment of counsel,. 5 6 I. MOTION FOR IN FORMA PAUPERIS 7 The determination of indigency falls within the district court’s discretion. Cal. 8 Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991), rev’d on other grounds, 9 506 U.S. 194 (1993) (holding that “Section 1915 typically requires the reviewing 10 court to exercise its sound discretion in determining whether the affiant has satisfied 11 the statute’s requirement of indigency”). It is well-settled that a party need not be 12 completely destitute to proceed in forma pauperis. Adkins v. E.I. DuPont de Nemours 13 & Co., 335 U.S. 331, 339-40 (1948). To satisfy the requirements of 28 U.S.C. § 14 1915(a), “an affidavit [of poverty] is sufficient which states that one cannot because 15 of his poverty pay or give security for costs . . . and still be able to provide himself 16 and dependents with the necessities of life.” Id. at 339. At the same time, however, 17 “the same even-handed care must be employed to assure that federal funds are not 18 squandered to underwrite, at public expense, . . . the remonstrances of a suitor who 19 is financially able, in whole or in material part, to pull his own oar.” Temple v. 20 Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984). 21 District courts, therefore, tend to reject IFP applications where the applicant 22 can pay the filing fee with acceptable sacrifice to other expenses. See e.g., Stehouwer 23 v. Hennessey, 841 F. Supp. 316, 321 (N.D. Cal. 1994), vacated in part on other 24 grounds, Olivares v. Marshall, 59 F.3d 109 (9th Cir. 1995) (finding that a district 25 court did not abuse its discretion in requiring a partial fee payment from a prisoner 26 who had a $14.61 monthly salary and who received $110 per month from family). 27 Moreover, “in forma pauperis status may be acquired and lost during the course of 28 litigation.” Wilson v. Dir. of Div. of Adult Insts., No. CIV S-06-0791, 2009 WL –2– 16cv2379 1 311150, at *2 (E.D. Cal. Feb. 9, 2009) (citing Stehouwer, 841 F. Supp. at 321); see 2 also Allen v. Kelly, 1995 WL 396860, at *2 (N.D. Cal. June 29, 1995) (holding that 3 a plaintiff who was initially permitted to proceed in forma pauperis should be 4 required to pay his $120 filing fee out of a $900 settlement). In addition, the facts as 5 to the affiant’s poverty must be stated “with some particularity, definiteness, and 6 certainty.” United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981). 7 Having read and considered Plaintiff’s application, the Court finds that 8 Plaintiff meets the requirements in 28 U.S.C. § 1915 for IFP status. Plaintiff is an 9 unemployed 44-year-old receiving $254 monthly for “general relief.” (IFP Mot. ¶¶ 10 1-2, 12.) No other sources of income or assets are listed. (Id. ¶¶ 1-2, 5-6.) Plaintiff’s 11 expenses amount to almost $400 per month. (Id. ¶ 8.) Plaintiff’s expenses and debt 12 are clearly greater than his current sources of income. Consequently, the Court finds 13 that requiring Plaintiff to pay the court filing fees would impair his ability to obtain 14 the necessities of life. See Adkins, 335 U.S. at 339. 15 In light of the foregoing, the Court GRANTS Plaintiff’s application for leave 16 to proceed in forma pauperis. (ECF No. 2.) However, if it appears at any time in the 17 future that Plaintiff’s financial picture has improved for any reason, the Court will 18 direct Plaintiff to pay the filing fee to the Clerk of the Court. This includes any 19 recovery Plaintiff may realize from this suit or others, and any assistance 20 Plaintiff may receive from family or the government. 21 22 II. SUA SPONTE SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2) 23 Notwithstanding payment of any filing fee or portion thereof, a complaint filed 24 by any person proceeding in forma pauperis pursuant to 28 U.S.C. § 1915(a) is 25 subject to a mandatory and sua sponte review and dismissal by the court to the extent 26 it is “frivolous, malicious, fails to state a claim upon which relief may be granted, or 27 . . . seeks monetary relief against a defendant who is immune from such relief[.]” 28 Lopez v. Smith, 203 F.3d 1122, 1141 n.6 (9th Cir. 2000) (en banc); see also 28 U.S.C. –3– 16cv2379 1 § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per curiam) 2 (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”). 3 Section 1915(e)(2) mandates that the court reviewing a complaint filed pursuant to 4 the IFP provisions of § 1915 make and rule on its own motion to dismiss before 5 directing that the complaint be served by the U.S. Marshal pursuant to Federal Rule 6 of Civil Procedure 4(c)(3). Lopez, 203 F.3d at 1127 (“[S]ection 1915(e) not only 7 permits, but requires a district court to dismiss an in forma pauperis complaint that 8 fails to state a claim.”); see also Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 9 1998) (noting the “the language of § 1915(e)(2)(B)(ii) parallels the language of 10 Federal Rule of Civil Procedure 12(b)(6)”). 11 As currently pleaded, Plaintiff’s one-page, handwritten complaint is subject to 12 sua sponte dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii). The only wrongful conduct 13 Plaintiff describes are: (1) Defendants’ failure to accommodate an unspecified 14 disability by renting a “downstairs” apartment unit; and (2) unspecified harassment, 15 though the harassment may be the act of calling law enforcement without a proper 16 reason (“the defendant are [sic] abusing the system by calling the police to my 17 house”). 18 Assuming the ADA applies, “[t]he question whether a particular 19 accommodation is reasonable ‘depends on the individual circumstances of each case’ 20 and requires a fact-specific, individualized analysis of the disabled individual’s 21 circumstances and the accommodations that might allow him to meet the program’s 22 standards.” Vinson v. Thomas, 288 F.3d 1145, 1154 (9th Cir. 2002). However, the 23 circumstances described in the complaint are too vague for the Court to permit this 24 claim to proceed. See 28 U.S.C. § 1915(e)(2)(B)(ii). The facts provided are 25 inadequate for the Court to conclude that Plaintiff states a plausible claim for relief. 26 See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 27 550 U.S. 544, 556 (2007)). 28 // –4– 16cv2379 1 Plaintiff’s harassment claim is also ambiguous. Assuming Plaintiff asserts a 2 harassment claim under California law, California’s Code of Civil Procedure § 527.6 3 may apply. Section 527.6 defines harassment as the “unlawful violence, a credible 4 threat of violence, or a knowing and willful course of conduct directed at a specific 5 person that seriously alarms, annoys, or harasses the person, and that serves no 6 legitimate purpose.” It adds that “[t]he course of conduct must be such as would cause 7 a reasonable person to suffer substantial emotional distress, and must actually cause 8 substantial emotional distress to the petitioner.” Plaintiff alleges that police are sent 9 to “knock on [his] door 20 times in a month,” which the Court suspects may qualify 10 as annoying or harassing conduct if done without a legitimate purpose, but no facts 11 are provided describing specific instances or whether Plaintiff sustained “substantial 12 emotional distress.” And it remains unclear whether § 527.6 is even the law Plaintiff 13 seeks to invoke in bringing his harassment claim. That effectively means Plaintiff 14 fails to plead the claim with sufficient specificity to “give the defendant[s] fair notice 15 of what the . . . claim is and the grounds upon which it rests.” See Twombly, 550 U.S. 16 at 555. In sum, Plaintiff fails to state a plausible claim upon which relief may be 17 18 granted. See 28 U.S.C. § 1915(e)(2)(B)(ii); Iqbal, 556 U.S. at 678. 19 20 III. CONCLUSION & ORDER 21 In light of the foregoing, the Court GRANTS Plaintiff’s motion to proceed 22 IFP (ECF No. 2), DISMISSES WITHOUT PREJUDICE the complaint pursuant 23 to 28 U.S.C. § 1915(e)(2)(B)(ii), and TERMINATES AS MOOT Plaintiff’s motion 24 for appointment of counsel (ECF No. 3). 25 IT IS SO ORDERED. 26 27 DATED: September 30, 2016 28 –5– 16cv2379

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?